State Legislative Trends in Reproductive Health Law and Policy: Mid-Year 2012 Analysis

In the first half of 2012, states enacted 95 new provisions related to reproductive health and rights. Of the 44 state legislatures that have convened this year, only seven currently remain in session. As was the case in 2011, issues related to abortion, family planning funding and sex education once again were significant flash-points in many legislatures (click here for a more detailed version).

Abortion

So far this year, states have enacted 39 new restrictions on access to abortion. Although this is significantly lower than the record-breaking 80 restrictions that had been enacted by this point in 2011, it is nonetheless a higher number of restrictions than in any year prior to 2011. Most of the 39 new restrictions have been enacted in states that are generally hostile to abortion. For example, 14 of the new restrictions have been enacted in just three states—Arizona, Louisiana and South Dakota—that already had at least five such restrictions on the books. Fully 55% of U.S. women of reproductive age now live in one of the 26 states considered hostile to abortion rights.

This year is shaping up to be similar to last year in terms of the number of abortion restrictions that have either been introduced or approved by a state legislative chamber. What distinguishes 2012 from 2011, however, is that a lower proportion of the restrictions that were passed by one legislative body have become law—30% of the abortion restrictions passed by one chamber so far this year have been enacted, a significantly lower proportion than the 51% that had been signed into law by this point in 2011.

There are several reasons for this trend, including that election-year legislative sessions tend to be shorter and more focused on bread-and-butter—rather than social—issues. In addition, legislatures in some states, including New Hampshire and Indiana, appear to be in near-total gridlock. At the same time, public push-back appears to have been successful in blocking action on some of the more extreme abortion restrictions. For example, the outcry against a measure that would have required a woman to undergo a trans-vaginal ultrasound prior to an abortion in Virginia is widely seen as having blunted the momentum behind similar provisions in Alabama, Idaho and Pennsylvania. Similarly, last November’s defeat of a constitutional amendment in Mississippi that would have conferred person-hood at fertilization appears to have helped derail similar provisions in Ohio and Oklahoma in 2012.

Over the past six months, states also considered requiring abortion counseling and extended delays for women seeking an abortion. In the most extreme example, Utah in April became the first state to require that a woman seeking an abortion wait 72 hours between obtaining counseling and having the procedure; a similar measure was enacted in South Dakota in 2011, but was never implemented because of a legal challenge. Twenty-five other states have a waiting period, generally requiring that the woman wait 24 hours.

Also this year, two states adopted measures attempting to use the fetal heartbeat as a way to discourage a woman from seeking an abortion. A new law in Oklahoma requires providers to offer a woman the opportunity to hear the fetal heartbeat before an abortion is performed at or after eight weeks’ post fertilization (or 10 weeks after the woman’s last menstrual period). A new law in Louisiana requires providers to make the heartbeat audible when a woman is seeking an abortion; this requirement necessitates performing a trans-vaginal ultrasound for abortions performed in the first eight weeks after the woman’s last menstrual period.

Finally, Arizona and South Dakota adopted measures requiring counseling on the negative mental health consequences of abortion, even though this connection has been widely discredited by mental health experts; this brings to nine the number of states requiring counseling to include unsubstantiated information on the mental health impact of having an abortion. Arizona also enacted a provision that would require a woman seeking an abortion because of a fatal fetal impairment to be given information on the availability of fetal hospice services to provide assistance in carrying the pregnancy to term; Minnesota is the only other state with such a requirement.

Family Planning Funding

Despite continuing state budget constraints and the widespread attacks on family planning funding in 2011, no state has singled out family planning funding for draconian cuts so far this year.

States also seem to be backing away from efforts to de-fund family planning providers. In 2011, eight states moved to disqualify at least some family planning providers from receipt of state family planning funds; so far this year, only three states (Arizona, Kansas and North Carolina) have done so. A court has blocked enforcement of the Kansas measure.

In an unequivocal gain for reproductive health, five states have moved to expand eligibility for family planning services under Medicaid. Indiana and Montana became the newest states to adopt a broad expansion, bringing the number of states with income-based expansions to 26. Oregon and Washington, which have long-standing Medicaid family planning expansions, increased the income ceilings under their programs from 200% of the federal poverty line to 250%. And the Vermont legislature adopted a measure in March calling on the state to apply for federal approval for an expansion.

Texas stands in sharp contrast to the encouraging developments in other states. A 2011 Texas law would have prohibited Planned Parenthood affiliates from participating in the state’s long-standing Medicaid family planning expansion. In March, the Centers for Medicare and Medicaid Services informed the state that enforcing the ban would violate federal Medicaid requirements. In response, Texas announced that it would instead terminate the federal-state program and establish a state-only effort that would not reimburse Planned Parenthood affiliates for the care they provide. Litigation filed by Planned Parenthood is pending.

Sex Education

From 2007 through 2010, four states passed legislation related to sex education; in each case, the new law aimed at expanding access to comprehensive and medically accurate programs. That trend began to reverse in 2011, when Mississippi and South Dakota adopted measures changing their policies to promote abstinence-until-marriage education.

So far this year, Wisconsin and Tennessee have adopted measures promoting abstinence-until-marriage education. In April, Wisconsin rolled back its 2010 law mandating comprehensive sex education and substituted a measure requiring information about the benefits of abstinence until marriage; the 2012 law does not even identify discussion of contraception as a recommended topic. For its part, Tennessee amended its law to require that any sex education in the state “exclusively and emphatically” teach abstinence and provide instruction on the consequences of “non-marital” sex.